Patna High Court - Orders
Mahendra Prasad Singh vs Mani Mohan Singh & Ors on 17 July, 2014
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10609 of 2010
======================================================
1. Mahendra Prasad Singh, S/O Late Chander Prasad Singh, R/O Village
Ramdiri Tola Lavrchak, P.O. Ramdiri , P.S. & District- Begusarai.
.... .... Petitioner/s
Versus
1. Mani Mohan Singh, S/O Late Deo Narayan Singh, R/O Village Ramdiri
Tola Nakti , P.S. Matihani, District- Begusarai.
2. Smt. Mira Singh, W/O Mani Mohan Singh, R/O Village Ramdiri Tola
Nakti , P.S. Matihani, District- Begusarai.
3. Dr. Hemant Kumar, S/O Ashok Singh, R/O Village & P.O. Panchbir, P.S.
Sahebpur Kamal, District-Begusarai.
4. Ashok Singh, S/O Bishundeo Singh, R/O Village & P.O. Panchbir, P.S.
Sahebpur Kamal, District-Begusarai.
5. Smt. Kalyani Singh @ Marndini, W/O Hemant Kumar, R/O Village &
P.O. Panchbir, P.S. Sahebpur Kamal, District-Begusarai.
6. Sankalp, S/O Mahendra Pd. Singh, R/O Village Ramdiri, P.O. Matihani,
P.S. And District- Begusarai.
7. Saket, S/O Mahendra Pd. Singh, R/O Village Ramdiri, P.O. Matihani,
P.S. And District- Begusarai.
.... .... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Bhupendra Narayan
For the Respondent/s : Mr. Raj Kumar Rajesh
======================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
9 17-07-2014Heard learned counsel for the petitioner as well as learned counsel appearing for the respondents.
Petitioner has prayed for quashing the order dated 21.04.2010 passed by learned Sub-Judge1st, Begusarai in Title Suit no. 201 of 2009 by which and where under he allowed the amendment petition filed on behalf of the respondents/ plaintiff of Patna High Court CWJC No.10609 of 2010 (9) dt.17-07-2014 2/6 that suit.
Respondent nos. 1 and 2 filed Title Suit no. 201 of 2009 against the petitioner and respondent nos. 3 to 7 for declaration of their easementry right of air, light and passage on disputed plots and furthermore, for restraining the defendants of that suit from making any encroachment on the disputed plots and also for removal of constructed wall on the disputed plots. During the pendency of the above stated suit, respondent nos. 1 and 2 filed an amendment petition under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code praying therein to permit them to delete the relief „A‟ of Paragraph no. 28 of the plaint and also be permitted to substitute new relief as follows:-
"On adjudication of facts and circumstances of the case the learned court pleased to declare the Schedule G ( suit land) as Rasta directing the defendant first party to demolish the alleged wall which was constructed by encroachment of land of the plaintiffs to the east of Schedule G land." The aforesaid amendment was sought on the ground that during pendency of the above stated Title Suit, the survey knowing pleader Commissioner submitted his report in a proceeding Under Section 144 of the Cr.P.C to this effect that some portion of the disputed plots were Patna High Court CWJC No.10609 of 2010 (9) dt.17-07-2014 3/6 encroached by respondent nos. 3 to 5.
The learned court below allowed the above stated amendment petition vide impugned order dated 21.04.2010 on the ground that the proposed amendment would not change the nature of the disputed property and to avoid the multiplicity of the suit and for proper adjudication of the dispute, the required amendment is desirable and essential.
Learned counsel appearing for the petitioner assailed the finding of learned Sub-Judge arguing that originally, respondent nos.1 and 2 claimed their easementry right over the disputed plots but by the proposed amendment they prayed before the court for declaration of their right and title in respect of the disputed plots and by the aforesaid amendments, they want to change the nature of the suit .It is further contended by him that the learned court below failed to appreciate this fact that if the proposed amendment is allowed, the nature of the suit would be changed. Learned counsel for the petitioner relied upon a decision reported in 2008 (14) SCC 364 as also relied upon a decision reported in 2009 (10) SCC 84. In both the aforesaid decisions the Apex Court highlighted the circumstance and the grounds in which the amendment petition could be allowed or rejected. Patna High Court CWJC No.10609 of 2010 (9) dt.17-07-2014 4/6
On the other hand, learned counsel appearing for the respondent nos. 1 and 2 supported the impugned order arguing that the proposed amendment does not change the nature of the suit because admittedly, respondent nos. 1 and 2 filed title suit for declaration of their easementry right over the disputed plots but during pendency of the aforesaid title suit, it came to light through the report of survey knowing pleader Commissioner in a proceeding under Section 144 of the Cr.P.C that the petitioner transferred some portion of the disputed plots to respondent nos. 3 to 5 and after that respondent no. 3 to 5 got constructed wall on the disputed plots and therefore, the respondent nos. 1 and 2 rightly prayed before the trial court for adding the relief for demolition of constructed wall on the disputed plots. It is further contended by him that to avoid the multiplicity of the suit and for complete adjudication of the controversy involved in the suit, the court can allow the prayer of amendment at any stage of the case. Learned counsel for the respondents relied upon a decision reported in 2006 (4) SCC 385 in which the Apex Court has held that the courts should allow all amendments that may be necessary for determining the real question of fact between the parties provided it does not cause injustice and prejudice to other side. Patna High Court CWJC No.10609 of 2010 (9) dt.17-07-2014 5/6
Having heard the above stated rival contentions of both the parties I went through the record including the impugned order.
It is admitted position that initially, respondent nos. 1 and 2 filed Title suit No. 201 of 2009 for declaration of their easementry right of air ,light and passage on the disputed plots and also for demolition of constructed wall. Subsequently, by the proposed amendment respondent nos. 1 and 2 prayed for adding relief of declaration of their right and title on the portion of the disputed lands on which the wall is said to have been constructed.
From perusal of plaint of Title Suit no. 201 of 2009, it would appear that the proceeding under Section 144 of the Cr.P.C was pending prior to institution of the above stated Title Suit No. 201 of 2009 and furthermore, respondent nos. 1 and 2 had already prayed for removal of wall from the disputed plots and therefore the aforesaid circumstance clearly goes to show that the wall in question was in existence at the time of filing of Title Suit no. 201 of 2009. Furthermore, originally respondent nos. 1 and 2 prayed only for declaration of their easementry right on the disputed plots but now they went to change their relief by adding declaration of their right and title over the so called encroached disputed land. Patna High Court CWJC No.10609 of 2010 (9) dt.17-07-2014 6/6
Therefore, in my opinion, if the amendment as sought by respondent nos.1 and 2 is permitted to be allowed, the same shall obviously change the nature of the present suit.
Accordingly, this writ petition stands allowed and the impugned order dated 21.04.2010 passed by learned Sub-Judge 1st, Begusarai in Title Suit No. 201 of 2009 is, hereby, quashed.
(Hemant Kumar Srivastava, J) Namita/-
U